Aquatic Systems and the Endangered Species Act:

A Case Study of the Edwards Aquifer

Habitat Conservation Plan

Aquatic Systems and the Endangered Species Act:

A Case Study of the Edwards Aquifer

Habitat Conservation PlanHabitat Conservation PlanHabitat Conservation Plan

Texas Groundwater Summit—Science and Innovation Breakout Session – August 26, 2015

Jenna B. Cantwell, SWCA Environmental Consultants

Endangered Species Act of 1973Endangered Species Act of 1973

� Protects listed species and habitats

� Species can be listed as “endangered”or “threatened”

� Generally, illegal to "take" a listed species without authorization species without authorization

� Civil and criminal penalties for ESA violations

� Fines or jail time - up to $100,000 and 1 year imprisonment per violation

� Non-enforcement consequences of violations include substantial project delays and negative press/market reactions

� Provides for “citizens suits” allowing third party enforcement of ESA

Take, Jeopardy, and Critical HabitatTake, Jeopardy, and Critical Habitat� What is “TAKE”?

� “to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect any threatened or endangered species”

� Service regulations define “HARM” to include significant habitat

modificationmodification

� Service can authorize certain types and levels of take

� Must avoid � Jeopardizing the continued existence of the species in the wild

� Destroying or adversely modifying areas of critical habitat

Non-federalSection 10 HCP Process

Non-federalSection 10 HCP Process

� No mandate to consult with USFWS – but risk of enforcement for ESA violations

� Project proponent prepares application for a Section 10 permit:

� Habitat Conservation Plan� Habitat Conservation Plan

� Draft NEPA document

� Stakeholder and/or public input may be required

� USFWS reviews and approves applications:

� Public notice and opportunity for comment typically required

� Section 7 Biological Opinion

� NEPA Finding of No Significant Impact or Record of Decision

� Review at multiple office levels

Incidental Take Permit Issuance CriteriaIncidental Take Permit Issuance Criteria� The taking will be incidental;

� The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;

� The applicant will ensure that adequate funding for the HCP and procedures to deal with unforeseen circumstances will be provided;procedures to deal with unforeseen circumstances will be provided;

� The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;

� The applicant will ensure that other measures that the Services may require as being necessary or appropriate will be provided;

� The Services have received such other assurances as may be

required that the HCP will be implemented.

The ESA and Aquatics: Challenges to Section 10 ComplianceThe ESA and Aquatics: Challenges to Section 10 Compliance

� Scale & Cumulative Effects

� Limited Options for Mitigation

� Best Available Science � Best Available Science

� ITP Issuance Criteria

� Regulatory Challenges

� Jeopardy Standard

Scale & Cumulative EffectsScale & Cumulative Effects

� The Challenge: Water Quality and Water Quantity; project scale; meaningful effect; demonstration of take.

� EAHCP Example: Edwards Aquifer � EAHCP Example: Edwards Aquifer dependent species protection requires the consideration of both water quality and quantity.

� EAHCP Solution: EARIP; legislative mandate; diverse stakeholder involvement.

Limited Options for MitigationLimited Options for Mitigation

� The Challenge: There are limited mitigation opportunities for endemic aquatic species.

� EAHCP Example: No conservation � EAHCP Example: No conservation banks/organizations with responsibility for Edwards species.

� EAHCP Solution: Implementation of a robust avoidance and minimization program; habitat restoration.

Best Available ScienceBest Available Science

� The Challenge: ESA decision making is based on the application of the Best Available Science which may be limited for rare (or subterranean) species.

� EAHCP Example: Very little information on the life � EAHCP Example: Very little information on the life history and basic biological needs is currently known for several of the Covered Species.

� EAHCP Solution: Conservation program modelled after historical conditions and supported by a dynamic modeling and research program; Adaptive Management.

ITP Issuance CriteriaITP Issuance Criteria

� The Challenge: Prior to ITP issuance, the USFWS must determine that the Applicant has met the Section 10 issuance criteria.

� EAHCP Example: Disagreement over appropriate � EAHCP Example: Disagreement over appropriate springflow levels; program funding discussions; implementation assurances.

� EAHCP Solution: Adaptive Management; Funding and Management Agreement; Early launch of several programs (Regional Water Conservation Program and Stage V CPM).

Regulatory ChallengesRegulatory Challenges

� The Challenge: There is a changing regulatory climate surrounding aquatic ecosystem and regulations are not consistent across jurisdictions.

� EAHCP Example: Jurisdiction over surface water vs. groundwater; legal challenges to the EAA Act.

� EAHCP Solution: Stakeholder involvement; unknown how ongoing legal challenges will affect the EAHCP.

Jeopardy StandardJeopardy Standard� The Challenge: Aquatic species are often

endemic to isolated water bodies and may be vulnerable to a natural or man-made catastrophic events.

� EAHCP Example: During the Drought of Record in the 1950s the fountain darter Record in the 1950s the fountain darter was extirpated from the Comal River.

� EAHCP Solution: Robust springflow protection measures and conservation program; inclusion of a Refugia program; unknown how USFWS will respond if springflows drop below those prescribed in the EAHCP.

“Nature is not more complex than we think; it is more complex than

we can think.”--San Bruno Mountain Stakeholder--San Bruno Mountain Stakeholder

Thank you.Thank you.